Clinton's Ditch Cooperative Co., Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1985

274 N.L.R.B. 728 (N.L.R.B. 1985)

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clinton's Ditch Cooperative Co., Inc. and Teamsters
Local 317, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of
America. Case 3-CA-10085
28 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 5 January 1983 Administrative Law Judge
Martin J. Linsky issued the attached decision. The
Respondent filed exceptions and a supporting brief,
the Charging Party filed cross-exceptions, a sup-
porting brief, and an answering brief, and the Gen-
eral Counsel filed a brief in support of the judge's
decision 1
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,2 findings, and
i Thereafter, the Respondent and the Charging Party filed several let-
ters calling to the Board 's attention a number of recently issued Board
decisions Both parties move to strike the other's letters on the ground
that they are untimely filed supplemental briefs because they contain ar-
gument supporting their interpretation of the cited cases We have con-
sidered the cases cited by the parties, but we have not considered any
Supporting argument Therefore, both motions to strike are moot
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
3 We agree with the judge's finding that the Respondent (Clinton's
Ditch) and Fairfield Transportation Corp (Fairfield) were joint employ-
ers because, as found by the judge, they shared or codetermined matters
governing the essential terms and conditions of employment of the driv-
ers NLRB v Browning-Ferris Industries, 691 F 2d 1117 (3d Cir 1982) We
do not rely on his discussion of other factors that are relevant only in the
single employer context In addition, we do not rely on his statement that
it would be unjust for Clinton's Ditch to be found to be anything other
than a joint employer
We agree with the judge's finding that the appropriate remedy is a
return to the status quo ante The record contains no evidence that such
a remedy would be unduly burdensome
Chairman Dotson and Member Dennis find that the record contains in-
sufficient evidence to support a conclusion that the Respondent agreed to
be bound by the collective -bargaining agreement negotiated between the
Union and Fairfield They do not pass on the question whether the Re-
spondent should be found to be obligated to honor the contract by virtue
of its status as a joint employer They note that inasmuch as the Board is
finding that the Respondent violated Sec 8(a)(5) by unilaterally changing
existing terms and conditions of employment and as the Board is ordering
a status quo ante remedy, the employees' backpay will be based on the
terms and conditions of employment established by the collective-bar-
gaining agreement between the Union and Fairfield Further , under the
particular circumstances of this case, they agree with the judge that
"[t]he purposes of the Act will be accomplished if the drivers are rein-
stated with backpay and both sides commence to bargain in good faith
regarding a new contract between them "
Contrary to the judge, Member Hunter additionally would find that
the Respondent is bound to the collective -bargaining agreement between
Fairfield and the Union and that the Respondent 's failure to apply that
agreement was in abrogation of Sec 8 (d) of the Act and violative of Sec
8(a)(5) He notes that the Respondent initially was party to a collective-
bargaining agreement with the Union and that , although the Respondent
and Fairfield subsequently entered into a contract which provided that
conclusions3 and to adopt the recommended Order
as modified.4
We agree with the judge that the Respondent
violated Section 8(a)(5) by failing to bargain with
the Union over its decision to subcontract its truck-
ing operations, but we do so for the following rea-
sons. In our recent decision in Otis Elevator Co.,
269 NLRB 891 (1984), we interpreted the Supreme
Court's decision in First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981), as follows:
"[T]he critical factor to a determination whether
the decision is subject to mandatory bargaining is
the essence of the decision itself, i.e., whether it
turns upon a change in the nature or direction of
the business, or turns upon labor costs; not its effect
on employees nor a union's ability to offer alterna-
tives." Supra at 892. (Emphasis in original.) We
also stated that "[i]ncluded within Section 8(d) . . .
are all decisions which turn upon a reduction of
labor costs." Supra at 893.
As found by the judge, the breakdown in negoti-
ations for a new agreement between the Respond-
ent and its joint employer, Fairfield, which ended
their relationship, occurred because the Respond-
ent would not agree to a rate increase based on
labor costs. The record reveals that, when the rela-
tionship with Fairfield was ending, the Respondent
contacted other companies concerning new trans-
the latter assume that collective-bargaining agreement and that it would
provide a written release of the Respondent from the Union, the Union
never gave such a release and made it clear that it would continue to
look to the Respondent as the ultimate employer Furthermore, although
the Respondent did not actually execute the subsequent collective-bar-
gaining agreement between Fairfield and the Union, it is clear that during
the negotiations for that agreement Fairfield continuously informed the
Respondent of the status of the negotiations, Fairfield had to secure the
Respondent's approval before making any monetary commitments, and
the Respondent sought and obtained language in the agreement to pro-
tect certain of its interests Given these facts, coupled with the additional
evidence concerning the Respondent's and Fairfield's joint employer
status which indicates that in all essential aspects control over the truck-
ing operations remained with the Respondent, Member Hunter considers
it appropriate in the circumstances here to find the Respondent bound to
the collective-bargaining agreement executed by Fairfield and the Union
In his view, to hold otherwise would be to ignore the realities of the rela-
tionship between the Respondent, Fairfield, and the Union Further, and
contrary to his colleagues, Member Hunter concludes that the remedy
will be materially affected by a finding that the Respondent is bound to
the collective -bargaining agreement In so doing , Member Hunter notes,
for example, that while the agreement contains a dues-checkoff provision
obligating Fairfield to periodically withhold from employees' pay and
remit to the Union certain amounts for union dues, the present order does
not require that the Respondent reimburse the Union for lost dues and
interest thereon See Fox Painting Co, 263 NLRB 437 (1982), affd per
curiam 732 F 2d 554 (6th Cir 1984)
The judge incorrectly found that Fairfield employees other than one
driver and a dispatcher were generally not at the Clinton's Ditch prem-
ises before "2 45 a m " instead of "2 45 p m " He also incorrectly found
that the Respondent did not commence looking for a new source of
truckdrivers until "following receipt of the cancellation notice" from
Fairfield, the record reveals that the Respondent contacted other truck-
ing companies prior to that time These errors are apparently inadvertent
and have no effect on our decision
4 We have modified the judge's Conclusion of Law 3 and par 2(a) of
his recommended Order to describe more accurately the violation found
274 NLRB No. 103
CLINTON'S DITCH CO
portation arrangements . The Respondent's General
Manager Alan Woodruff spoke with Jack Bevans
of Global Leasing, Inc. (Global) on 26 August
1980. The next day Bevans wrote Woodruff the
following letter, which reveals that labor costs
were a key consideration in the negotiations be-
tween the Respondent and Global:
As I told you in my conversation while in Syr-
acuse, I recommend that these drivers be put
under a union contract with the Brotherhood
of Railway & Airline Clerks. I believe that
Local 317 will do all in their power to orga-
nize this operation as they will be losing this
membership. Any rates that I am quoting you
I am sure that I will be able to negotiate with
BRAC, but I do not want to contact the
Union until such time as we know that this is
the way it is going to go.
On 29 October 1980, without notice to the Union,
the Respondent and Global entered into an agree-
ment for Global to supply drivers to the Respond-
ent.
In sum , the Respondent's relationship with Fair-
field ended because of labor costs, and the Re-
spondent was looking for labor-cost savings when
it entered into its relationship with Global. Fur-
thermore, when the Respondent contracted with
Global for drivers, there was no "change in the
nature or direction" of the Respondent's business.
Otis Elevator, supra. The Respondent still used the
same leased equipment, but now it was leased from
Ryder and Lincoln Leaseway instead of Fairfield.
The Respondent still used leased drivers, but now
they were leased from Global instead of Fairfield.
The only difference in the Respondent's operation
was that the drivers were a different group of em-
ployees. Therefore, we find that the Respondent's
decision to subcontract its trucking operations
"turn[ed] upon labor costs" within the meaning of
Otis Elevator. Accordingly, it was a mandatory sub-
ject of bargaining.-'
5 Member Dennis agrees that the Respondent was obligated to bargain
over its decision to subcontract its trucking operation Her analysis is
based on her interpretation of the Supreme Court's First National Mainte-
nance decision , as set forth in her concurring opinion in Otis Elevator Co
In her view , a two-step test is used in deciding whether a certain man-
agement decision is a mandatory subject of bargaining "[T]he General
Counsel must prove (1) that a factor over which the union has control
was a significant consideration in the employer's decision, and (2) that the
benefit for the collective -bargaining process outweighs the burden on the
business " 269 NLRB 891 at 897 The burden elements to be considered
in applying the second part of the test include extent of capital commit-
ment , extent of changes in operations , and the need for speed, flexibility,
or confidentiality In the instant case , Member Dennis agrees that labor
costs (a factor over which the Union has control) were a significant con-
sideration in the Respondent 's decision to subcontract its trucking oper-
ation Turning to the burden elements, she finds that the Respondent's
decision involved no capital commitment , virtually no change in oper-
ations, and there is no evidence of a need for speed, flexibility, or confi-
729
AMENDED CONCLUSIONS OF LAW
Substitute the following paragraph 3 for that of
the administrative law judge.
"3. By unilaterally subcontracting its trucking
operation without bargaining with the Union over
the decision or its effects on the unit employees,
the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Clinton's Ditch Cooperative Co., Inc.,
Syracuse, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for the first sentence
of paragraph 2(a).
"(a) Offer those employees who were displaced
by the unilateral subcontracting of the Respond-
ent's trucking operation immediate and full rein-
statement to their former jobs or, if these jobs no
longer exist , to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them
whole for any loss of pay and other benefits suf-
fered by them commencing on 1 November 1980."
2. Substitute the attached notice for that of the
administrative law judge.
dentiahty Accordingly, she concludes that the General Counsel estab-
lished that "the benefit" outweighs "the burden" and that the Respond-
ent's decision was a mandatory subject of bargaining
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT refuse to bargain collectively with
Local 317, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive bargaining representative of all
truckdrivers who work out of our Cicero, New
York, facility by contracting out the work of those
employees or otherwise changing their wages,
hours, and other terms and conditions of employ-
ment without first bargaining with the above-
named labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL offer reinstatement to all the drivers
displaced by the unilateral subcontracting of our
trucking operation.
WE WILL pay backpay with interest to all driver-
employees who were displaced by the unilateral
subcontracting of our trucking operation.
WE WILL bargain collectively with Local 317,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, as
the exclusive bargaining representative of the driv-
ers who work out of our Cicero, New York, facili-
ty.
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material
herein, a corporation duly organized under, and existing
by virtue of, the laws of the State of New York.
At all times material herein, Respondent has main-
tained its principal office and place of business at Pardee
Road, Cicero, New York, and is, and has been at all
times material herein, continuously engaged at the plant,
place of business, and facility, in the business of canning,
bottling, and distributing soft drink products and related
services.
During the past 12 months, Respondent, in the course
and conduct of its business operations, purchased, trans-
ferred, and delivered to its Cicero, New York plant
syrup and other goods and materials, valued in excess of
$50,000, which were transported to the plant directly
from States of the United States other than the State of
New York.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II LABOR ORGANIZATION
Teamsters Local 317, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
CLINTON'S DITCH COOPERATIVE CO.,
INC.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge On a
charge filed on November 5, 1980, by Teamsters Local
317, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (the Union or
Local 317) the General Counsel for the National Labor
Relations Board, by the Regional Director for Region 5,
issued a complaint, dated May 18, 1981, and an amend-
ment, dated January 25, 1982 The complaint, as amend-
ed, alleges that Clinton's Ditch Cooperative Co., Inc.
(Respondent or Clinton's Ditch) in violation of Section
8(a)(1) and (5) and Section 8(d) of the National Labor
Relations Act (the Act) unlawfully subcontracted its
trucking operations Respondent denied that it violated
the Act in any way.
Nine days of hearings were held in February and
March 1982 and the record was closed on April 29,
1982, upon receipt and admission of additional exhibits
submitted by Respondent and the Charging Party
On the entire record in this case, to include posthear-
ing briefs filed on July 29, 1982, by the General Counsel,
Respondent, and the Charging Party, reply brief filed by
the Charging Party, which I have considered over objec-
tion from Respondent, and Respondent's opposition to
the Charging Party's reply brief, and on my observation
of the demeanor of the witnesses, I make the following
III THE UNFAIR LABOR PRACTICES
Clinton's Ditch was formed in 1967, pursuant to the
Farm Cooperative Laws of the State of New York. It
exists for the purpose of bottling, canning, and internally
distributing Pepsi Cola and related products to its ap-
proximately 15 members who have distribution rights
within given geographical areas. The policies of Clin-
ton's Ditch are determined by its 15-member board of di-
rectors. Alan Woodruff, Clinton's Ditch's general man-
ager , has responsibility for overseeing day-to-day oper-
ations and is answerable to each co-op member.
The employees of Clinton's Ditch involved in the can-
ning and bottling of soft drinks have been represented by
the United Steelworkers since Clinton's Ditch's Cicero,
New York facility went into operation in 1968. Since at
least 1970, until September 20, 1976, Clinton's Ditch di-
rectly employed drivers represented by Local 317. Clin-
ton's Ditch and Local 317 were parties to a series of 3-
year collective-bargaining agreements, with the last
agreement having a term February 2, 1975, through Feb-
ruary 1, 1978.
A. Trucking Operations Prior to September 20, 1976
For the 6-year period prior to September 20, 1976,
Robert Venette, a Clinton's Ditch supervisor had direct
responsibility over the trucking and loading operations of
Clinton's Ditch, including all aspects of dispatching,
loading, and supervision of drivers. Clinton's Ditch uti-
lized trailers and tractors rented from Ryder. The trac-
tors were marked with the Clinton's Ditch logo and
CLINTON'S DITCH CO
trailers with Pepsi Cola logos. Until January 1, 1975,
Clinton's Ditch had a full-service maintenance agreement
with Ryder for the equipment Ryder maintained the
equipment at Clinton's Ditch's garage located approxi-
mately 400-500 feet from the bottling plant In January
1976 Fairfield Transportation Corp purchased the equip-
ment from Ryder and proceeded to lease it back to Clin-
ton's Ditch At the same time Fairfield replaced Ryder
in regard to the maintenance of the vehicles at Clinton's
Ditch's garage, paying an annual rental of $1.
The workflow for driving started with co-op members
either sending in written orders or phone orders request-
ing delivery of specified products at certain dates and,
where requested, specified times. On a daily basis Ven-
ette received shipping tickets listing the orders to be de-
livered for the following day
From the shipping tickets, which he received at 9
through 10 in the morning, Venette prepared a dispatch
sheet on which he listed the drivers' names, destination,
backhauls, and starting times. As mandated in the labor
agreement , Venette assigned drivers to runs on the basis
of seniority, either in terms of distance of the runs or
total amount of revenues. Drivers were paid for runs on
the basis of mileage and a set dollar amount for a drop
or pickup In determining runs Venette had to take into
consideration the drivers' ICC hours, the utilization of
tandems, i e , two trailers pulled by one tractor which
could only be driven on the New York State Through-
way, and the geographical area for backhauls. In prac-
tice, Venette utilized certain set tandem runs and single
runs and was familiar with the seniority of the top 12 of
the 15-20 member crew of drivers
In the afternoon the dispatch schedule was posted,
either in the garage or in Venette's office in the ware-
house, for the drivers to ascertain their runs for the fol-
lowing day If a driver had left for the day before the
dispatch sheet was posted the driver was notified by
phone of his next day's work.
In the morning the drivers reported to Clinton's Ditch,
picked up their bills of lading and other paperwork, and
departed on their runs. Venette attached a yellow slip of
paper to the driver's bill of lading, giving the details of
backhauls. Apart from driving, drivers regularly moved
empty trailers to the loading dock and moved trailers to
the Throughway compound.
The product itself was loaded onto the trailers by
forklift operators supervised by Venette As mentioned
previously, Venette directly dispatched, handled driver
discipline, and otherwise had overall supervisory respon-
sibility for transportation In this regard drivers regularly
contacted Venette when dispatch and transportation
problems arose.
If drivers had hours' left after returning from a run,
they picked up bills of ladings and took second trips
Second trips often were not listed on the dispatch sheet.
B Trivet House Meeting
On September 2, 1975, Shop Steward George An-
drews, along with union officers Paul Gambacordo and
i By law drivers may not drive more than 10 hours a day or work
more than 15 hours total a day or work more than 60 hours a week
731
John Del Guidice, at the invitation of Clinton's Ditch,
met with Woodruff and Venette at a luncheon meeting
at the Trivet House. At this meeting Woodruff informed
Local 317 that Fairfield was taking over the trucking op-
erations for Clinton's Ditch but that nothing would
change, that the Ditch would supervise everything, that
all actions taken by Fairfield, including the negotiation of
a contract, would have to be approved by Clinton's
Ditch and that, if things did not work out, Clinton's
Ditch would buy the equipment back and the drivers
would be reemployed directly by Clinton's Ditch.
Woodruff explained that the change was being made as a
first step in Clinton's Ditch owning its own trucks.2
Gambacordo died prior to the hearing in this case and
obviously could not be a witness. Del Guidice, as a
result of several medical problems about the time of the
meeting, had no recollection of what had occurred at the
meeting when he testified at the hearing. While driver
and Union Steward George Andrews was incorrect as to
exactly who attended the meeting, I credit his testimony
that he was told by Clinton's Ditch that no substantive
changes would occur when Fairfield came into the pic-
ture.
C Fairfield's Assumption of Transportation
In January 1976 Fairfield purchased the equipment,
used by Clinton's Ditch, from Ryder and leased the
equipment back to Clinton's Ditch on the same basis as
Ryder had At that time Fairfield replaced Ryder insofar
as the maintenance of the equipment3 was concerned.
On May 17, 1976, Clinton's Ditch and Fairfield en-
tered into a carrier agreement . The carrier agreement
provided for Fairfield to assume the Local 317-Clinton's
Ditch collective-bargaining agreement and for Fairfield
to provide a written release from the Union to Clinton's
Ditch from the labor agreement. A written release was
never obtained. In fact, Quinn, counsel for Clinton's
Ditch, suggested a three-party agreement between Clin-
ton's Ditch, Fairfield, and Local 317 be entered into so
that Clinton's Ditch could be relieved of its obligations
to Local 317 and the drivers it represented No such
three-party agreement was entered into and, in fact,
counsel for Local 317 made it crystal clear that it would
continue to look to Clinton's Ditch as the ultimate em-
ployer
The carrier agreement , because of delays in securing
ICC and DOT approval, did not go into effect until Sep-
tember 20, 1976, at which time without any hiatus in
transportation operations Fairfield took on Clinton's
2 Three drivers were informed by Clinton's Ditch prior to the takeov-
er by Fairfield that the arrangement with Fairfield would not affect
them Woodruff told driver James Revior that nothing would change,
that it was the beginning of Clinton's Ditch owning its own fleet and that
he would always have a job Driver Donald Stuper was told by Venette
that under the change everything would go on the same as it always did
Venette told driver Lynne Root that the operation would be the same,
but that the pay would come from Fairfield
8 Fairfield maintained the equipment at the Ditch's garage paying a
dollar a year garage rental The equipment retained the logo of Clinton's
Ditch on the trucks and Pepsi logos on the trailers
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ditch's drivers and assumed the Local 317-Clinton's
Ditch collective-bargaining agreement.4
The carrier agreement and its successors entered into
between Clinton's Ditch and Fairfield were terminable
by either party upon specified notice, required Clinton's
Ditch to purchase Fairfield's equipment upon termina-
tion, and provided for periodic bargaining for rate ad-
justments Compensation was based on a flat rate per
case and a flat fee for backhauls. Periodically compensa-
tion was increased partially based on labor figures sub-
mitted to Clinton's Ditch in justification by Fairfield.
Under the carrier agreement, before Fairfield periodical-
ly replaced equipment, the approval of Clinton's Ditch
as to specifications of the purchase was required.
Prior to the actual loading of a trailer by Clinton's
Ditch, Fairfield had no knowledge of the product or the
weight of the trailer. In loading trailers, Clinton's Ditch
attempted to get the maximum payload . Similarly, inas-
much as Fairfield's compensation was based on a per-
basis, Fairfield had no idea of its compensation for a run
prior to loading by Clinton's Ditch. In this regard, due
to bulk and weight factors, Fairfield' s compensation
varied depending on whether the trailer was loaded with
cans or bottles. Moreover, wear and tear on Fairfield's
equipment varied depending on the weight of the prod-
uct carried. Fairfield had no ability under the carrier
agreement to vary those factors, which influenced the
profitability of its operations. Similarly, inasmuch as
Fairfield was required to take whatever loads given to
them and deliver the loads, as dictated by Clinton's
Ditch, and as Fairfield was not informed of its work on
other than a day-before basis, Fairfield was without any
power to efficiently schedule work to avoid utilizing
extra men or renting extra equipment or to vary weight
and deliveries to minimize wear and tear on equipment
or to otherwise schedule deliveries in a manner they
might have deemed more efficient.
Under the carrier agreement Fairfield was required to
transport or pick up materials at the destination, date,
and time specified by Clinton's Ditch Fairfield has no
discretion or input to deviate from the above conditions.
Fairfield was informed of its work on a daily basis for
the next day's runs or, as often was the case, Fairfield
was directed to perform the work as it arose. Drivers
were assigned runs on the basis of seniority. The assign-
ments themselves did not constitute much more than a
ministerial act on Fairfield's part, inasmuch as several of
the runs would not be run as tandems because of the lack
of proximity to the Throughway, driving time , and geog-
raphy. Tandems could be used for only certain locations
based on consideration of geography, and backhauls
were tied in to proximity to the place of delivery.
day work The drivers merely continued operating as
they had pre-Fairfield
For at least a 2-month period from September 20,
1976, the date when Fairfield assumed the driving oper-
ations, Venette trained Fairfield dispatcher Horton. Ven-
ette met with Horton on a daily basis and showed him
how the dispatch sheet was to be made up and how runs
and backhauls were to be made Venette advised Horton
of what single runs to use, what tandem combinations to
use, and what times particular co-op members were to
receive deliveries. During this break-in period, Venette
approved or disapproved the combinations proposed by
Horton When Venette disapproved of a combination
and suggested a change Horton followed Venette's sug-
gested changes. Venette similarly trained the Fairfield
dispatchers who succeeded Horton. At some point after
Fairfield was in place Venette told the Fairfield dispatch-
er that he (the dispatcher) should be aware of what time
the drivers actually departed so that when a co-op
member called Venette to find out why a delivery was
not made Venette could respond. Thereafter, Fairfield
changed its operations so that it recorded the driver's
actual departing time.
On a daily basis Venette continued to receive shipping
tickets for the next day's deliveries. Venette would there-
after prepare a list of destinations, delivery times, and
backhauls which he presented to the Fairfield dispatcher.
As discussed, supra, Venette, until he was satisfied that
the dispatcher could assign the work correctly, directly
supervised the dispatchers in preparing the dispatch
sheet. Following the training period, Venette regularly
worked with the dispatcher in preparing the sheet Runs
continued to be assigned on the basis of seniority. Often
Venette added runs or made changes to the assignment
sheets after the dispatcher had departed for the day and
at other times. As had been the previous practice, Ven-
ette added a slip to the bills of lading, which continued
to be prepared by Clinton's Ditch, either specifying the
product to be picked up for delivery (backhauls) or a slip
for the driver to call when he arrived at the destination
for further assignment.5 On occasion the dispatch sheet
specified what driver should take a particular second
run. Generally, however, drivers were not assigned spe-
cific second runs. Instead the driver took the most lucra-
tive second run on the list on the dispatch sheet on a
first-in, first-out basis in accordance with his hours re-
maining of driving time. Often drivers were assigned
second or even third runs by Clinton's Ditch which were
not listed on the dispatch sheet. In such circumstances
the driver took the run without notifying the Fairfield
dispatcher 6
D Transportation Under Fairfield
Dispatching of drivers and day-to-day operations re-
mained substantially the same under Fairfield as it had
under Clinton 's Ditch In this regard Fairfield never in-
structed the drivers as to how to perform their day-to-
4 Many of the drivers refused to fill out new job applications, as re-
quested by Fairfield, and were not disciplined for failing to do so
5 The directive for a driver to call back was not listed on the dispatch
sheet, only on the slip attached to the bills by Venette
6 Although Venette testified that he almost never made a change in
runs affecting a driver, unless he first cleared the change with the dis-
patcher, I find this statement to be less than totally credible given the
limited hours, as discussed, infra, that the Fairfield dispatcher was on the
premises and the fact that drivers were regularly making deliveries and
returning to Clinton 's Ditch almost on a 24 -hour basis, and particularly at
times when the dispatcher was gone during the workday Accordingly, I
do not credit Venette's testimony in this regard although I am sure he
Continued
CLINTON'S DITCH CO
On an average of once a week, Venette added runs
during the course of a day. On the same frequency Ven-
ette substituted runs for scheduled runs where Clinton's
Ditch did not have the product for the original run
On returning from runs Venette regularly directed
drivers to take a load to East Syracuse.7 The drivers
took such runs without checking with Fairfield and were
paid by Fairfield for the runs. Often the Syracuse runs
were not listed on the dispatch sheet.
On one occasion in 1978 or 1979 driver Peck, on re-
turning from a run, was asked by Venette to take a run
to Auburn Peck replied that he only had 2 hours' driv-
ing time left and that the trip would take in excess of
that time. Peck took the run, despite the obvious illegal-
ity of performing the work, after Venette told him that
he had to take the load Fairfield's dispatcher, John
Knatco, was present during the conversation and did not
countermand Venette's directive
During the 1979 strike at co-op member Syracuse
Pepsi Cola, Venette directly supervised the drivers.
Thus, on one occasion, driver Paul Lee, after returning
from his first run, went to the driver's room to pick up
bills for a run to Auburn Pepsi. When he picked up the
bills, the dispatcher told him to see Venette. Lee report-
ed to Venette who told him to take a load to the back of
William's Market and that a person from Syracuse Pepsi
would meet him there and show him where to drop the
trailer. Lee proceeded to William's Market but could not
locate anyone from Syracuse Pepsi Lee then called Clin-
ton's Ditch in an attempt to reach Venette but Venette
was out to lunch. Lee informed Clinton's Ditch why he
was calling and was told that Clinton's Ditch would call
over to Syracuse Pepsi to find out where the person was
who Lee was to meet A few minutes later Clinton's
Ditch called Lee back and said that someone from Syra-
cuse Pepsi was on his way. While waiting Lee saw a
fellow driver and gave him the bills for the Auburn run
to take back to the garage since he would not be able to
make the trip A short time thereafter Venette came to
the Market and asked Lee if anyone showed up yet Lee
replied that he had not seen anyone. Venette and Lee
proceeded to look for a person from Syracuse Pepsi.
Venette then went inside the Market and came out and
directed Lee to drop the trailer Lee then went back to
the garage but lost the Auburn trip
On another occasion during the Syracuse strike, driver
Symer returned from a run but could not find the dis-
patcher He went to Clinton's Ditch to get the bills for a
Syracuse run and met Venette who told him that the bill
kept the dispatcher informed as to what he was doing if the dispatcher
were on the premises and it was convenient to do so Moreover, as dis-
cussed, infra, the dispatcher did not often express surprise when a driver
explained a delay in returning as scheduled by the fact that he had been
contacted by Venette to do additional work In this regard it is noted
that driver Symer, when he regularly returned to the facility, at 8 30
a in , would observe Fairfield dispatcher Mosley going through the driv-
ers' trip sheets and adding entries to the previous days' dispatch sheet to
conform to the changes directed by Venette in the course of the day
Moreover, in the course of the conversation Mosley would note to
Symer, in reviewing Symer's trip sheet, that Symer had been given addi-
tional rum the previous day I credit Symer's testimony in this regard
7 The East Syracuse facility of co-op member Syracuse Pepsi was lo-
cated approximately 15 minutes from the Ditch's facility
733
was made out to Syracuse Pepsi, but that he should park
the trailer at a grocery store off Midler Avenue and that
he should see the store manager
At any given time Fairfield employed only one dis-
patcher The hours of the dispatcher varied. Dispatchers
Horton and Knatco during their tenures worked from
approximately 7 a m. to 4:30 p.m. Mosley, during most of
his tenure, worked slightly longer hours. However,
during the last 2 months Mosley rarely was at the prem-
ises for more than 2 to 3 hours a day. The dispatchers
prior to Mosley were regularly absent from the facility
between the hours of 10 a.m. and noon. In addition, the
dispatchers were regularly absent from the facility each
Monday morning. Drivers left the facility anytime from
2 a m. to 6 p m., with the bulk of the runs starting at 4
a.m. Drivers regularly arrived at their destinations and
were back to Clinton's Ditch from first runs at times
when the dispatcher was off the premises Generally no
other Fairfield employee other than a driver and dis-
patcher would be at the premises before 2 45 a m. It is
not surprising in light of this absence of Fairfield repre-
sentatives that the drivers often contacted Clinton's
Ditch when problems arose.
The Fairfield drivers were under direct instructions to
call Clinton's Ditch if they had problems in the field
with the product, delivery, or pickup. Fairfield was
called only if the driver encountered mechanical difficul-
ties with the vehicles. In addition, drivers were instruct-
ed by Clinton's Ditch to contact it for authorization
before taking product back from a customer. At a time
approximately 4 to 6 months after the drivers went on
the Fairfield payroll, Clinton's Ditch imposed a practice,
for the most part honored, of refusing to accept collect
phone calls from the drivers. The drivers continued to
contact Clinton's Ditch either by calling collect, having
the co-op member dial Clinton's Ditch, or calling Clin-
ton's Ditch but billing the call to Fairfield.
As discussed, supra, often notes were attached to the
bills of lading directing the driver to contact Clinton's
Ditch when they arrived at a destination The driver, on
arriving at the destination, would call Clinton's Ditch for
instruction as to what they were to do next 8 Generally
the instructions involved additional work, resulting in
added compensation.
Drivers regularly contacted Venette or other Clinton's
Ditch representatives when they encountered difficulties
ranging from wrong product, refusal of a customer to
accept load, damaged product, delay in pickup or deliv-
ery, errors in the bills of lading, customer requests for
return of product, product unavailability, and instruc-
tions as to care of product. Venette's instructions to the
drivers would range from arranging for the product to
be delivered elsewhere, return of the product to Clin-
ton's Ditch, additional pickups, substitution of pickups,
or arranging for the member to accept the load. Depend-
ing on Venette's instructions, the drivers' compensation
could be increased or the driver would encounter sub-
stantial downtime for which he was not compensated.
8 Venette conceded that pursuant to "call back" slips he was contacted
by drivers once or twice a month and that he handled the call, often
without informing the dispatcher
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Venette's activities in resolving driving difficulties are
illustrated by his intervention with American Can.
In early 1980 driver Albert Peck encountered a prob-
lem in picking up empty cans at the American Can facili-
ty in Fairport, New York. The problem was that other
customers of American Can were receiving priority in
pickup, thereby causing Peck to have to remain at the fa-
cility until the other customers were loaded.9 On return-
ing to the Clinton's Ditch facility Peck sought out Ven-
ette and related the problem. Venette responded that
Peck should contact him if he encountered loading prob-
lems in the future at Fairport. Thereafter, on at least two
occasions, Peck called Venette while at Fairport to com-
plain that he was being delayed.1 ° Following each call
Venette resolved the delay and Peck was placed ahead
of other trucks at Fairport.
On arriving at their dispatched destinations drivers
were regularly contacted by phone by Venette and in-
structed by him to make an additional stop At other
times, rather than direct telephone contact with the
driver, Venette left messages with the place of destina-
tion relating the additional change.' 1 The changes in the
run were additions to the original assignments. Inasmuch
as they were under instructions by Fairfield to conform
to Venette's directive, the drivers did not clear Venette's
instruction with Fairfield. As is apparent from the fact
that drivers were often questioned by the Fairfield dis-
patcher as to why they were delayed in returning and
were not disciplined when they responded that Venette
had made a change, it is clear that Venette's changes
were made in many cases without the prior knowledge
of Fairfield.
Often notes were attached by Venette to the bill of
lading instructing the driver to pick up a check (c.o.d
delivery) at a customer's location. At some locations the
customers, without any prior notification to the driver,
gave the driver a check to return to Clinton's Ditch
When a driver was instructed to make the delivery cod
and the check was not presented on arrival the driver
called Venette for instructions as to whether to make the
delivery.
Venette regularly went to the Fairfield garage to pick
up shipping tickets12 and checks (c.o.d.'s). At times Ven-
ette questioned the dispatcher as to why he had not sepa-
rated the shipping tickets and returned the checks to
Venette. On occasion Venette would perform Fairfield's
work by separating the shipping tickets.
By encountering delays at Fairport , Peak lost dnving hours which he
could have utilized for other paid runs
10 Driver Boots similarly called Venette in August or September 1980
when he was delayed at Fairport Venette told Boots to call back in 30
minutes if he was not loaded in that time Venette thereafter intervened
and Boots ' trailer was loaded
ii Venette testified that poor to contacting a driver to add a run he
would first clear the additional work with the dispatcher Mosley testified
that when Venette contacted him regarding having a driver deviate from
an original assignment , he would tell Venette to leave word at the point
of destination for the driver to make the change and that the driver
would not call Mosley back for confirmation of the directive related by
Venette
iz On completing a run , drivers would turn in their shipping tickets to
Fairfield Fairfield retained one copy of the tickets and Clinton's Ditch
was given a copy
As part of their normal duties, drivers, without receiv-
ing extra pay, on returning from a run took their empty
trailers to Clinton's Ditch's loading dock and backed the
trailer to the dock if a space was available. Throughout
the course of their employment with Fairfield, drivers
regularly pulled loaded trailers from the dock and
moved empty trailers from the yard to the dock for load-
ing. This movement of trailers was referred to as "spot-
ting ." The drivers were paid extra per spot by Fairfield.
The drivers were under standing order from Fairfield
to perform whatever work, including spotting, requested
by representatives of Clinton's Ditch. Drivers were regu-
larly directed by representatives of Clinton's Ditch, pri-
marily Venette, to spot trailers. The drivers followed
such directives without clearing the directive with Fair-
field, were paid by Fairfield for such work, and were not
questioned or disciplined for following the directives of
Clinton's Ditch to spot.13
Although the drivers spotted throughout the year,
most of the spotting work took place during the winter
months when Fairfield did not employ a yardman to per-
form spotting. Inasmuch as a driver would have no way
of knowing what trailers had been loaded or were ready
for loading spotting did not take place unless the driver
was specifically directed to pull a specified trailer. The
principal procedure for spotting was for Venette14 to
stop a driver and direct him to spot a particular trailer or
trailers. Often Venette handed the driver a list of trailers
to be spotted.
In addition to spotting at Clinton's Ditch's facility, the
drivers regularly spotted at co-op members. This circum-
tance occurred if a trailer was already in the member's
loading dock. In these cases the co-op member directed
the Fairfield driver to move the trailer. Procedurally the
driver unhooked his trailer , pulled the trailer to be
moved with his tractor , and then rehooked the Fairfield
trailer to the tractor for backing into the loading dock
The drivers were paid extra for this work by Fairfield
and performed such work without clearance or question-
ing by Fairfield. 1 s
In late 1977 and early 1978 Union President Thomas
Hall met with representatives of Fairfield to negotiate a
labor agreement to succeed the Local 317-Clinton's
Ditch agreement which had been adopted by Fairfield.
Bargaining was frustrated by the fact that Fairfield, prior
to making any commitments with the Union concerning
monetary increases , had to check with Clinton's Ditch as
to whether it could meet the requested increases. Apart
from monetary items, Fairfield informed the Union that
Clinton's Ditch wanted specific language in the contract
to ensure that the Union would not honor a picket line in
the event the Steelworkers struck. Ultimately language
was reached protecting Clinton's Ditch. Throughout the
13 The drivers had regularly spotted under the directive of Venette
prior to the arrival of Fairfield in September 1976
14 Depending on the time of the year and the time they came back
from runs drivers would perform spotting work anywhere from a couple
of times a week to a couple times a month Although the Fairfield dis-
patcher and employees of the Ditch would on occasion request drivers to
spot, the majority of the directives to spot were made by Venette
15 The drivers were similarly paid for such spotting when employed
directly by Clinton's Ditch
CLINTON'S DITCH CO
course of the negotiations, Clinton's Ditch, through writ-
ten correspondence from Fairfield, was informed of the
status of negotiations . I specifically credit the testimony
of Tom Hall regarding these negotiating sessions.
While employed directly by Clinton's Ditch the driv-
ers, in addition to the compensation specified in the labor
agreement , received two cases of low fill sodas a week, a
Thanksgiving turkey, and were invited to Clinton's
Ditch annual clambake i 6 Throughout the course of
their direct employment by Fairfield, Clinton's Ditch
continued to provide drivers with turkeys, weekly low
fills, and a clambake. 17
By memorandum dated September 24, 1976, Woodruff
informed the co-op members as follows-
TO: ALL MEMBERS
CLINTON'S DITCH COOP. CO., INC.
RE- FAIRFIELD TRANSPORTATION
Effective Monday, September 20, 1976, we trans-
ferred our drivers over to Fairfield Transportation.
As of that date the drivers became employees of
Fairfield Some are bitter but they will adjust to the
new employers in a short period of time. If you
have any problems with any one of these drivers
please contact me.
Now that the change has taken place, it is even
more important that at NO TIME you send back
more than 75 pallets on any truck Would you
kindly see to it that each truck gets some pallets but
no more than 75.
Have a Pepsi Day,
Alan
Woodruff testified that pursuant to the memorandum,
members of the co-op contacted him with problems they
had encountered with drivers and that he forwarded the
complaints to Fairfield. The second portion of the
memorandum , directing members not to return more
than 75 pallets with a driver, relates to the fact that Clin-
ton's Ditch paid Fairfield for a pickup if drivers returned
more than 75 pallets Woodruff testified that the purpose
of the directive was to avoid Clinton's Ditch becoming
obligated for a pickup.
By memorandum dated June 6, 1977, Woodruff in-
formed co-op members as follows
TO: ALL MEMBERS
CLINTON'S DITCH COOP CO., INC
RE: NEW DRIVERS
Due to the large volume of sales, our trucker,
Fairfield Transportation, has hired several new
drivers. So, I thought this would be an appropriate
time to advise you as to the responsibilities of each
driver-old and new.
16 In 1973 prior to the entry of Fairfield on the scene the Union won
an arbitration award reinstating the weekly low fills following the unilat-
eral cessation of the practice by Clinton's Ditch
17 Although Fairfield became the direct employer of the drivers on
September 20, 1076, Clinton's Ditch paid for the vacation that was taken
by drivers during the period September 20 through December 31, 1976
735
1. He should arrive at your plant at the approxi-
mate time you requested.
2 He is responsible to get the pallets of full prod-
uct to the tailgate by use of a hand jack. You are
not required to supply any assistance , but you may.
3. He should bring back two stacks of empty pal-
lets and please remember-no more than 90 as I
have to pay for more than 90
4 Any foul or abusive language should be report-
ed to either Bob Vinette or myself for appropriate
disciplinary action.
5. No driver is authorized to make settlements for
damaged products. Contact Bob Vinette or myself
in this case.
If you have any problems or questions please
contact me
As discussed supra, Clinton's Ditch directed its mem-
bers to contact it if they had complaints about the driv-
ers. On receiving complaints Clinton's Ditch notified
Fairfield and expected Fairfield"' to act on such com-
plaints, including taking appropriate disciplinary action.
As attested by Venette, Fairfield met Clinton's Ditch's
expectations in following through on imposing discipline
Venette explained that it was his policy to complain
about drivers by first verbally discussing the matter with
the Fairfield dispatcher and thereafter, if necessary, lodg-
ing a written complaint. Venette explained that, if he
lodged a written complaint, Fairfield would generally
give him a written response and that in such cases the
complained-of conduct did not repeat itself. The above-
described procedure was in effect throughout the course
of Clinton's Ditch's relationship with Fairfield. Set forth
below, in chronological order, are the complaints that
representatives of Clinton's Ditch recalled lodging with
Fairfield.
On June 6, 1977, Woodruff wrote Fairfield's dispatch-
er Horton relating that he had a call from an individual
who claimed that a driver had used foul language.
Woodruff advised Horton that he should tell the drivers
that even though they work for Fairfield that Clinton's
Ditch name and the name of Pepsi Cola is on the vehi-
cle. Woodruff concluded by suggesting that Horton
"straighten out a couple of immature drivers that you
have on your payroll." Woodruff explained that he
wrote the letter after receiving a complaint about driver
George Andrews. Thereafter Andrews received a writ-
ten warning over this alleged incident, with a copy of
the warning letter going to Woodruff.19
By letter, dated March 4, 1977, Andrews received a
written warning from Horton for terminating his daily
run at his home. Andrews met with Horton and ex-
plained that he was not taking the vehicle home and that
he had only been using a different Throughway exit to
avoid traffic Horton said that he had received his infor-
mation from Venette. Andrews then talked to Venette
la Fairfield dispatcher, Mosley, testified that when he received com-
plaints about a driver from Clinton's Ditch or a member he would inves-
tigate, take appropriate action, and advise the caller of his action
19 After returning from the run, where the incident occurred, An-
drews was questioned by Venette as to whether he had a run-in with
somebody
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and explained as he had to Horton. Venette told him not
to worry that it was only a warning notice and that they
assumed he was taking off because he had gotten off a
different exit from that used by the other drivers.
By the letter dated November 12, 1976, with a copy
sent to Venette, driver Fred Hassney received a written
warning from Fairfield for refusing a Syracuse run given
to him by Venette The letter states:
Failure to comply with the above outlined proce-
dure, or to cooperate with officials of Clinton's
Ditch or Fairfield Trans. Corp. will result in further
disciplinary action in the form of suspension or if
continued, possible dismissal.
Thereafter, Andrews, Horton, Venette, and Hassney met
to discuss the letter Venette and Horton took the posi-
tion that Hassney had been goofing off while Andrews
and Hassney replied that Hassney had already worked a
14-hour day.
By letter dated June 23, 1977, Venette wrote Horton
that co-op member Buffalo Pepsi had complained about
driver Dale Reynolds using pallets to position his load.
Thereafter, by letter, dated June 27, 1977, with copies to
Woodruff and Venette, Horton issued a written warning
to Reynolds. Andrews discussed the unloading problem
with Venette and Venette suggested that junk pallets be
used in the future
On February 20, 1978, Woodruff wrote Horton to
complain about Reynolds and concluded by stating that
he "strongly suggest[s] that you do not send this man to
the Buffalo plant any longer." Woodruff testified that by
sending the letter he expected Fairfield not to send
Reynolds any longer to Buffalo. In fact, thereafter, fol-
lowing a meeting with Andrews, Horton, and Reynolds,
Reynolds was no longer sent to Buffalo.
By letter dated August 31, 1977, Venette wrote
Horton complaining about Andrews damaging the prod-
ucts in running to Keesville. Thereafter, by letter, dated
September 6, 1977, with a copy to Venette, Horton
issued a written warning to Andrews. Andrews went di-
rectly to Venette and told him that the problem was
caused by the manner in which Clinton's Ditch was
loading the product and questioned how could he be re-
sponsible in such circumstances. Venette replied, "Don't
worry about it, it's just a warning letter."
By letter dated February 20, 1978, Woodruff com-
plained again to Horton about damaged products on
Keesville runs caused by the negligence of Andrews.
By letter dated January 14, 1978, Venette wrote
Horton to complain about driver Walter Watkins' failure
to make a pickup. Venette concluded his letter by stat-
ing:
Jim, I would appreciate a written reply, at your ear-
liest convenience explaining how and why this situ-
ation happened and the appropriate reprimand
action taken with this driver.
Venette elaborated that he was thereafter informed by
Horton that Watkins had claimed he was sick and there-
fore left the load. Venette testified that he accepted Nor-
ton's explanation.
In January 1977 Venette and Woodruff, along with
Fairfield, participated in a meeting at the Union's hall
concerning the discharge of driver Root At this meeting
Venette stated that they were better off without Root.
Ultimately it was agreed to reinstate Root.
Periodically Clinton's Ditch sent memoranda to Fair-
field instructing Fairfield to take certain actions with re-
spect to the drivers Woodruff acknowledged that he ex-
pected Fairfield to carry through with his memoranda
and that Fairfield did, in fact, conform to the requested
actions In this regard Mosley testified that it was his
practice to take a copy of the memorandum from Clin-
ton's Ditch, make a handwritten notation on it calling
the drivers' attention to the memo, and post the memo-
randum on the drivers' bulletin board. Mosley testified
that he expected the drivers to conform with Woodruff's
memoranda.
On May 5, 1980, Woodruff wrote Mosley complaining
that a loaded trailer had not been placed back to back so
as to prevent theft and that Pepsi trailers had not been
placed at the entrance to the driveway of Clinton's
Ditch for advertising purposes .20 Following receipt of
the memo Mosley took steps to ensure that the matters
were taken care of.
By letter dated July 21, 1980, Woodruff wrote Mosley
Please advise all of your drivers that they are not
authorized to bring back any product from Member
plants without a return authorization slip or verbal
approval from either Mr. Davies, Mr. Venette or
myself.
In addition to the above, Mosley recalled posting memo-
randa from Clinton's Ditch directing drivers to check
trailer wheels when they backed empty trailers to the
Clinton's Ditch loading dock and not to drop loaded
trailers on the black top in front of the plant.
Clinton's Ditch had sole responsibility for loading
product on the Fairfield trailers and for determining the
method to secure the product on the trailer. In 1979
Clinton's Ditch utilized iron grates to hold pallets in
place. The grates caused damage to drivers' clothing
during the unloading process When the Union com-
plained to Fairfield about the use of grates Fairfield re-
sponded that it was Clinton's Ditch's problem After un-
successfully attempting to contact Clinton's Ditch, the
Union filed an OSHA complaint which resulted in Clin-
ton's Ditch abandoning the use of the grates
By letter, dated July 29, 1980, Fairfield, following a
breakdown in negotiations with Clinton's Ditch for a
rate increase, sent Clinton's Ditch a notice of termination
effective October 31, 1980. As discussed previously, in
the negotiations Fairfield had submitted documents
which, inter alia, set forth labor costs as justification for
the increase Following receipt of the cancellation notice,
Woodruff commenced contacting other companies to
make arrangements for transportation. At no point did
Clinton's Ditch inform the Union of the cancellation
notice or thereafter contact the Union in any manner. By
20 Once the product was loaded on the trailers Fairfield was responsi-
ble for the product
CLINTON'S DITCH CO
letter dated October 24, 1980, Woodruff informed Fair-
field that pursuant to its obligations under the carrier
agreement to buy back Fairfield's equipment, Ryder
would purchase the tractors and Lincoln Leaseway
would purchase the trailers. Thereafter, the equipment
was purchased and Ryder and Leaseway, in turn, leased
the equipment back to Clinton's Ditch. This equipment,
which had been used by Fairfield, continued to be
marked with the Clinton's Ditch logo.
By letter dated October 16, 1980, Fairfield informed
the Union that effective on October 31, 1980, all bargain-
ing unit members would be permanently laid off.2 i On
receipt of the letter Union President Hall confronted
Fred Durkin, Fairfield's President, and asked him what
was going on Durkin told him that the matter was out
of Durkin's hands and that Hall should talk to Clinton's
Ditch. After unsuccessfully attempting to reach Wood-
ruff by phone, Hall went to the Cicero facility and de-
manded from Woodruff that he be kept informed about
what was going on so that he could protect the employ-
ees' rights. Woodruff responded that he had asked
Durkin for a 30-day extension, that Durkin had not
granted it, and that Hall should deal with Durkin. After
speaking with Woodruff, Hall again met with Durkin
who told Hall that he was "washing his hands, it's be-
tween you and Clinton's Ditch."
By telegram, dated October 30, 1980, the Union re-
quested a meeting with Clinton's Ditch to discuss the
termination of the Local 317 drivers. Clinton's Ditch
made no response to the Union's demand This was at a
minimum the functional equivalent of a demand to bar-
gain made by Local 317 to Clinton's Ditch.
E. Fairfields' Existence
Fairfield was formed for the sole purpose of servicing
Clinton's Ditch and at no time serviced anyone but Clin-
ton's Ditch As of October 31, 1980, following the imple-
mentation of the buy-back agreement with Clinton's
Ditch, Fairfield had no trailers, tractors, assets, employ-
ees, or existence.22
21 Fairfield, prior to the October 16, 1980 letter, never informed the
Union of the uncertainty of the continuation of a relationship with Clin-
ton's Ditch or requested bargaining with the Union to effectuate a reduc-
tion in the monetary package so as to enable it to make a better proposal
to Clinton's Ditch
22 Mosley credibly testified that the modus operandi of Fred Durkin is
to form a separate corporation to service a particular client When the
agreement with the client is terminated , the trucking company is dis-
solved Each Durkin corporation is separately incorporated , maintains
separate tax records, and individually engages in collective bargaining
The collective -bargaining agreements provide for separate seniority lists
and separate health and welfare contributions In this regard Mosley testi-
fied that Durkin takes steps to ensure the separate identity of the various
corporations On occasion when Fairfield needed extra equipment or
extra drivers it would rent equipment from a Durkin or other company
and ask a Durkin or other company if it had men who were available
The extra men, so acquired , received the terms and conditions of the
Fairfield-Local 317 agreement In this regard a man employed by a
Durkin company could not be ordered to work elsewhere The singleness
of the Fairfield operation is further illustrated by the fact that the Fair-
field drivers who obtained employment with other Durkin companies had
to apply as new applicants and did not retain or carry over any seniority
or benefits accrued with Fairfield In sum , the record is inescapable that
Fairfield vis-a-vis other Durkin entities constituted a single employer
under the Act Fred Durkin did not testify
737
F. Global Leasing
As discussed supra, following receipt of the cancella-
tion notice from Fairfield, Woodruff began seeking alter-
native means of transportation. On August 25, 1980,
Woodruff met with Jack Bevans of Global Leasing, Inc,
hereafter "Global." On August 26, 1980, Bevans sent
Woodruff a written proposal which stated in part
As I told you in my conversation while in Syracuse,
I recommend that these drivers be put under a
union contract with the Brotherhood of Railway &
Airline Clerks. I believe that Local 317 will do all
in their power to organize this operation as they
will be losing this membership. Any rates that I am
quoting you I am sure that I will be able to negoti-
ate with BRAC, but I do not want to contact the
Union until such time as we know that this is the
way it is going to go.
Sometime prior to October 14, 1980, Woodruff told
Bevans to prepare to supply drivers as of November 1,
1981.23 On October 23, 1981, the Clinton's Ditch board
of directors approved entering into an agreement with
Global to replace Fairfield.
Thereafter Clinton's Ditch and Global entered into an
agreement , dated October 29, 1980.24 Interestingly
enough, the agreement contains numerous provisions in-
dicative of joint employer status, e.g., article 3 provides
that Clinton's Ditch can cause the discharge of Global
drivers; article 7 provides that Global will assume no re-
sponsibility for compliance with ICC or DOT rules relat-
ing to personnel; article 8 provides that Clinton's Ditch
shall have the right to examine Global's personnel
records; article 9 provides that Clinton's Ditch will do
all dispatching and all day-to-day operations of the vehi-
cles, and article 18 provides that Clinton's Ditch will not
violate any collective-bargaining agreements entered into
by Global and that Clinton's Ditch will indemnify
Global for any monetary awards arising under the labor
agreements of Global.25
Without any hiatus in delivery operations, Global re-
placed Fairfield on November 1, 1980. Global did not
retain any of the Fairfield drivers but utilized a similar
complement of men. Global utilized the equipment leased
to Clinton's Ditch 26 Clinton's Ditch had input into the
selection of the Global dispatcher Venetic, as he had for
Fairfield, spent a 2-month period breaking in the Global
dispatcher, teaching the Global dispatcher the proce-
21 Woodruff contended that the agreement was in effect on a tempo-
rary basis between October 1980 and April 1981
24 Clinton ' s Ditch gave no notice to the Union as to its intent to enter
into an agreement with Global
21 Woodruff contended that prior to signing, he informed Bevans that
any agreement he signed was subject to the approval of his attorney The
October 29, 1980 agreement, as acknowledged by Woodruff, contains no
such reservation Respondent contends that the October 29 agreement
was never enforced as to those items indicating joint employer , status and
there is no evidence that it was and that in April 1981 a new agreement
was entered into between Global and Clinton's Ditch, which does not
contain the aforesaid clauses indicative of joint employer status
26 Sometime in December 1981 or January 1982 Global took over
maintenance responsibilities from Ryder About the same time Clinton's
Ditch purchased the trailers and tractors it had leased
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dures for dispatching runs and backhauls In all respects,
including dispatching, runs, loading, daily assignments,
and backhauls, Global's operations have remained identi-
cal to Fairfield 1S.27
G. Discussion
It is uncontested that up to September 20, 1976, Clin-
ton's Ditch was the employer of its drivers who were
represented by Teamsters Local 317 As such Clinton's
Ditch had certain obligations toward those drivers with
respect to bargaining, etc. On September 20, 1976, Clin-
ton's Ditch's drivers went onto the payroll of Fairfield
Fairfield adopted the collective- bargaining agreement be-
tween Clinton's Ditch and Local 317 and when that
agreement expired in 1978 Fairfield entered into a sepa-
rate collective-bargaining agreement with Local 317. On
October 31, 1980, the drivers covered by the collective-
bargaining agreement between Fairfield and Local 317
were terminated, when Clinton's Ditch and Fairfield ter-
minated their relationship. Clinton's Ditch thereafter sub-
contracted its delivery functions to Global Leasing
whose delivery functions had been unit work of its
drivers/employees, at least up to September 20, 1976.
The actions of Union President Tom Hall, discussed
supra, in talking with Durkin and Woodruff about the
termination of the drivers and sending the October 30,
1980-telegtam to Woodruff clearly constitute attempts to
bargain over the termination of the drivers and its ef-
fects If Clinton's Ditch continued to be an employer of
the drivers represented by Local 317 after September 20,
1976, and up to October 31, 1980, then Clinton's Ditch
violated Section 8(a)(1) and (5) of the Act when it unilat-
erally subcontracted the unit work to Global Leasing
without first honoring Local 317's request to bargain.
The subcontracting effectively breached the collective-
bargaining agreement then in effect between Local 317
and Fairfield. The remedy would be to return to the
status quo ante, i.e., reinstatement with backpay to the
terminated drivers and an order to Clinton's Ditch to
bargain in good faith with Local 317 regarding the sub-
contracting of the unit work. If Clinton's Ditch was not
an employer of the drivers represented by Local 317 on
October 31, 1980, then the complaint in this matter
should be dismissed . Clinton's Ditch could only be an
employer of the drivers represented by Local 317 as of
October 31, 1980, if Clinton's Ditch was a joint employer
of those drivers along with Fairfield.
There are numerous reported cases wherein the Board
has discussed whether or not an entity is or is not a joint
employer with another. Several tests have evolved for
determining joint employer status The Board generally
looks to four principal factors in determining whether
two arguably separate employers are really point employ-
ers These factors are. (1) common ownership or finan-
cial control, (2) common management , (3) interrelation
of operations, and (4) centralized control of labor rela-
tions. Holiday Inn of Benton, 237 NLRB 1042 (1978). All
four factors need not be present and centralized control
of labor relations has been held to be the most significant
21 Global's compensation is based on a cost-plus basis , i e , direct oper-
ating costs , including the costs of the dispatcher, plus a flat fee
factor. Floyd Epperson & United Dairy Farmers, Inc., 202
NLRB 23 (1973), enfd. 491 F 2d 1390 (6th Cir 1974)
Clearly, Clinton's Ditch and Fairfield do not have
common officers, common management officials, or
common financial control. Accordingly, they are not a
single employer or joint employer based on the theory of
common financial control, common management, or
common officers However, on the basis that there was
such an interrelation or integration of operations between
the two and such other evidence pointing to joint em-
ployer status, I conclude that Clinton's Ditch and Fair-
field were joint employers They shared or codetermined
matters governing the essential terms and conditions of
employment of the drivers
The General Counsel, Respondent, and the Charging
Party have cited virtually all the leading cases on the
question of joint employer status. No one case cited by
any of them is exactly comparable with the instant case.
Each case can be distinguished on its facts from the in-
stant case. However, an analysis of those cases and the
factors that those cases hold to be indicative of point em-
ployer status lead to the inescapable conclusion that
Clinton's Ditch was a joint employer with Fairfield.
Those factors which in the aggregate lead to the con-
clusion that Clinton's Ditch was a joint employer with
Fairfield can be summarized as follows.
1. Integration or interrelationship of operations. See,
e.g, Land Equipment, 248 NLRB 685 (1980) Fairfield
did not exist except to service the need of Clinton's
Ditch to deliver its product. Venette and whoever the
Fairfield dispatcher was at the time worked hand in
glove on a daily basis to accomplish the task of deliver-
ing Clinton's Ditch's product. Fairfield could not even
purchase trucks without the approval of Clinton's Ditch.
See Berkshire Concrete Corp., 238 NLRB 1658 (1978).
The drivers on the Fairfield payroll drove trucks with
the Clinton's Ditch logo on them. See Sinclair & Valen-
tine Co., 238 NLRB 754 (1978); Browning-Ferris Indus-
tries, 259 NLRB 148 (1981)
2. Participation in collective-bargaining process. Tom
Hall credibly testified that during the negotiating be-
tween Local 317, which he represented, and Fairfield
that the Fairfield representatives continually had to con-
sult with Clinton's Ditch. See Pulitzer Publishing Co., 242
NLRB 35 (1979), American Air Filter Co., 258 NLRB 49
(1981). Pipe & Foundry & Winfrey Enterprises, 247 NLRB
139 (1980).
3. Day-to-day supervision of work Even acknowledg-
ing that some of the drivers exaggerated the numbers of
times that Venette contacted them in the field or that
they contacted Venette while they were in the field it is
still crystal clear that as a practical matter the entry of
Fairfield on the scene only introduced one supervisory
level individual between the drivers and Venette,
namely, the Fairfield dispatcher. For all practical pur-
poses the drivers continued to be Venette's men See
Moderate Income Management Co, 256 NLRB 1193
(1981), Pulitzer Publishing Co, 242 NLRB 35 (1979),
Syufy Enterprises, 220 NLRB 738 (1975) Possibly the
case with the greatest factual similarity to the instant
case is Floyd Epperson, 202 NLRB 23 (1973), enfd. 491
CLINTON'S DITCH CO
F.2d 1390 (6th Cir 1974) The Board found joint em-
ployer status in that case on facts substantially similar to
those in the instant case, United was found to be a joint
employer with Floyd Epperson where the drivers, who
were obstensibly employed by Floyd Epperson but
hauled for United, were directed in the field by United
supervisors not unlike the way in which Venette directed
the drivers in this case who were obstensibly employed
by Fairfield
4. Control of wages, hours, and other terms of em-
ployment Joint employer status has been based on the
implementation, direct or indirect, of discipline See, e.g.,
Syufy Enterprises, supra, and Floyd Epperson, supra In
the instant case Clinton's Ditch effectively disciplined
drivers and directed other terms and conditions of their
employment by issuing directions on a wide range of
subjects. The drivers often received orders directly from
Clinton's Ditch regarding spotting and taking second
runs which directly affected their wages
Some factors which would point to joint employer
status are not present in this case, e g , it appears that
hiring and firing was done by ICC and DOT, and Fair-
field handled the payroll for the drivers to include
paying social security and withholding taxes. However,
the presence in this case of so many of the factors which
point to joint employer status in the cases cited by the
parties leads to the conclusion that Clinton's Ditch and
Fairfield were joint employers on October 31, 1980.
Two additional points should be noted. (1) Local 317
in September 1976, in a letter to Clinton's Ditch from
Local 317's attorney (a letter Clinton's Ditch never re-
sponded to) clearly put Clinton's Ditch on notice that it
was not releasing it from its collective-bargaining obliga-
tions to Local 317 and advising further that Local 317
would continue to look to Clinton's Ditch, and (2) Clin-
ton's Ditch, through its agents, led the drivers represent-
ed by Local 317 to believe that the entry of Fairfield
would only result in a change of the name on their pay-
checks, thereby lulling the drivers into a sense of securi-
ty, which proved to be false in October 1980 I conclude
that the case of American Pacific Concrete Pipe Co., 262
NLRB 1223 (1962), cited in the Charging Party's reply
brief, is not controlling in this case. There was no con-
tract between Clinton's Ditch and Local 317 because
there was no meeting of the minds between the parties
that Clinton's Ditch would rehire the drivers as their
direct employees if Fairfield went out of business How-
ever, Clinton's Ditch clearly left the impression that this
would be the case. Accordingly, it would be unjust for
Clinton's Ditch in light of all the foregoing to be found
anything other than a joint employer.
The telegram of October 30, 1980, from Hall to Clin-
ton's Ditch can only be interpreted as a timely request to
bargain in light of the history of the relationship between
Local 317, Fairfield, and Clinton's Ditch and in light of
the manner in which Hall was told by Fred Durkin 2
weeks prior to sending the telegram that the closing of
Fairfield was out of his hands and he should talk to Alan
Woodruff and when Hall spoke with Woodruff, Wood-
ruff told him the matter was out of his hands and he
should talk to Durkin.
739
The contracting out of the work previously performed
by members of an existing bargaining unit is a subject of
mandatory collective bargaining Fibreboard Corp. v.
NLRB, 379 U S 203 (1964) Accordingly, Clinton's
Ditch, which refused to bargain about this matter with
local 317, but unilaterally brought in Global Leasing to
perform the unit work of delivering its product violated
Section 8(a)(1) and (5) of the Act First National Corp. v.
NLRB, 452 U.S. 666 (1981), relied on by Clinton's Ditch,
is not controlling. When Fairfield terminated its very ex-
istence the only remaining parties to the existing employ-
er-employee relationship were Clinton's Ditch and the
drivers represented by Local 317. While a management
decision to terminate a part of its operation for economic
reasons may not be a subject of mandatory collective
bargaining, Clinton's Ditch in the instant case was con-
tinuing the delivery portion of its operation only its de-
livery of product to its co-op members would be done
by drivers working for Global Leasing and not by the
drivers represented by Local 317. This contracting out is
clearly a mandatory subject of bargaining
In light of the violations of Section 8(a)(1) and (5) the
only remedy available is to return to the status quo ante
insofar as possible, i.e, the drivers should be reinstated
with backpay, Clinton's Ditch directed to cease and
desist in its unlawful practices and to bargain in good
faith with Local 317. See Hillside Manor Health Facility,
257 NLRB 981 (1981); Capital Parcel Delivery Co., 256
NLRB 302 (1981) Respondent points out that this usual
Board remedy will cause problems for Clinton's Ditch.
This is true and regrettable but the necessary conse-
quence of violating the law.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce,
and in operations affecting commerce, within the mean-
ing of Section 2(2), (6), and (7) of the Act
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By displacing the drivers represented by the Union,
upon the expiration of its contract with Fairfield Trans-
portation without permitting the Union to bargain over
the decisions or its effects on these employees, Respond-
ent engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the Act.28
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed29
28 1 do not conclude that Respondent violated Sec 8(d) of the Act
because Clinton's Ditch was not signatory to the existing collective-bar-
gaining agreement between Fairfield and Local 317 and it was Fairfield
who elected to terminate the existing carrier agreement between it and
Clinton's Ditch in accord with the provisions of that agreement The Our-
poses of the Act will be accomplished if the drivers are reinstated with
backpay and both sides commence to bargain in good faith regarding a
new contract between them
29 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Clinton's Ditch Cooperative Co
Inc., Syracuse, New York, its officers, agents, successors,
and assigns, shall
I Cease and desist from
(a) Refusing to bargain collectively with Local 317,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
bargaining representative of its truckdrivers who work at
its Cicero, New York facility by contracting out the
work of those employees or otherwise changing their
wages, hours, and other terms and conditions of employ-
ment without first bargaining with the above labor orga-
nization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2 Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) Reinstate and make whole those employees dis-
placed by the termination of the carrier agreement be-
tween Respondent and Fairfield Transportation Corp
for any loss of pay and other benefits suffered by them
commencing on November 1, 1980. Backpay to be com-
puted in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as set forth in Florida
Steel Corp., 231 NLRB 651 (1977) (see generally Isis
Plumbing Co, 138 NLRB 716 (1962))
(b) Bargain collectively with Local 317 as the exclu-
sive representative of the above-described employees
with respect to wages, hours, and other terms and condi-
tions of employment
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its facility in Cicero, New York, copies of
the attached notice marked "Appendix. 1130 Copies of the
notice on forms provided by the Regional Director for
Region 3, after being signed by Respondent's authorized
representative, shall be posted by it immediately upon re-
ceipt and be maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
50 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "